IGF CultureWatch

Hendrik Hertzberg has an excellent Talk of the Town piece in the June 22 edition of The New Yorker about the effect of Barack Obama's Cairo speech on the Middle East. As I was reading it, I kept thinking how much I wish that was the Barack Obama addressing gay equality.

Here is Hertzberg:

. . . he offered his audience not only ordered information, argument and context but also the catharsis of saying aloud things long unsaid. He wished, he said, to speak clearly and plainly, and that is what he did.

Compare that to the Obama who has been assigned to deal with our issues. He has said he supports equality - is, in fact, a "fierce advocate" of it - but has also said that he believes marriage is only between a man and a woman because of his religious beliefs. In fact, he has never offered anything other than religious beliefs to support this statement.

That is entirely respectable as a declaration of faith, but it is not a policy argument, except for those Christianists who believe that, like Iran's theocracy, religious leaders are capable of using scripture to determine public policy in a 21st Century nation that is composed of various sects, religions and even non-believers. We do not have a religious Supreme Leader, or a Guardian Council, and I, at least, am skeptical that this is the model most Americans would want for the United States.

Obama opposed California's Prop. 8, which suggests he is open to public policies that conflict with his religious belief. And that is of paramount importance.

But compare Obama's performance on gay equality to his performance in Cairo. He has yet to articulate any ordered information, argument and/or context, and if anyone has heard him speak clearly or plainly on homosexual equality or same-sex marriage, they're keeping it to themselves.

Is it possible that homosexual equality is harder than dealing with the Middle East? The talent this President has - of "saying aloud things long unsaid" - is exactly what this discussion has long needed from a President. Our frustration, I think, is in the fact that we elected exactly that President, and now he seems to be more afraid of dealing with us than he is of dealing with the most intense religious and political conflict in the modern world.

Jonathan Capehart makes the good argument that Congress is where the laws are made and, in the case of DADT and DOMA must be unmade - and that we should focus our efforts there. And he is surely right about that.

But what we need is leadership, and when it comes to that, Congress is no match for the President. As an institution, Congress follows, it does not lead. Nancy Pelosi and particularly Harry Reid are cautious administrators of their party's interests, and neither is in a league with the President when it comes to sheer political oratory.

But as the world could see from the Cairo speech, oratory comes from understanding, and I am not convinced Obama yet has anything but rhetoric on gay equality, the glib and uncritical soundbites that go no deeper than political convenience.

If his newfound solidarity with the A-List gays goes no further than the usual political jargon, we won't have gained anything. That is, in fact, the central problem that needs to be solved. This President has shown he can get beyond the jargon in ways that most of the political establishment cannot. But he needs to hear from people who do not speak in the jargon - and jargon is the stock-in-trade of those who claim to be our (unelected) leaders.

So I'm trying to figure this out. When courts impose gay marriage, conservatives tell us, that's undemocratic. These decisions should be left to the political branches, which are accountable to the people.

OK, I get that. But when two states' legislatures approve gay marriage of their own free will, with no court compulsion, and when the governors sign gay marriage into law, that's...undemocratic?

Right! Here it is, in an article by one Mark Hemingway at NationalReview.com. Apparently the goalposts have moved a bit: now only plebiscites are democratic:

"Of the recent states that have legalized same-sex marriage - Iowa, Maine, and New Hampshire - none has done so through democratic means, and the actions of the courts and legislatures run against public opinion."

One can only wonder: have these people any integrity at all?

If you need evidence of how much of a burden homosexuals have in the political environment, I'd recommend this video of Robert Gibbs. He takes a genuine political risk on our behalf, and comes out foursquare in favor of arithmetic. As you can see, the White House is ". . . committed to a fair and accurate count of all Americans," and is currently ". . . in the midst of determining the best way to ensure that gay and lesbian couples are accurately counted."

I don't want to sound too snarky here. It is real progress that the government we pay our tax dollars to support is actually willing to count same-sex couples accurately. That certainly has not been the government's policy in the past -- which should tell you something.

The fact that they have to struggle with this -- the fact it is a problem for them -- brings them face to face, once again, with the unreasonable, irrational and mean-spirited provisions of DOMA. Someday, I hope, they will see that it's easier for all of us to get rid of it, and save us all valuable time and effort we could be devoting to real problems.

I'd also like to join Dale in extending a warm bloggy welcome to Brian Chase.

Chris Geidner has a good, measured piece at Salon, gently making the point that the gay community does not need to be at war with the President over the Smelt brief. I agree, and urge people to read his essay.

While he does not defend the brief, though, I think he misses the key point. That's even clearer in his blog post criticizing the rhetoric John Aravosis has been wielding. It's not that he's wrong; Aravosis does exaggerate the role that the pedophilia and incest cases play in the brief, and does overstate DOJ's official statement about its role in defending federal laws. But these are disagreements about hot, political oratory, and distract from what I continue to think is the central problem with the brief - its premises.

As I've argued, the constitutional sections of this brief could not have been written but for its central, unarticulated thesis -- that all people are fundamentally heterosexual. It is only from that starting point that anyone could argue DOMA does not discriminate against lesbians and gay men. If all people really could meaningfully marry someone of the opposite sex, then DOMA's prohibition on any federal legal recognition for same-sex relationships really doesn't discriminate against anyone. It is the very model of the "neutrality" the brief continually invokes -- because the world it posits has no homosexual people in it to discriminate against.

That premise is as untenable as it is incoherent. Of course DOMA discriminates against lesbians and gay men. It was intended to discriminate against lesbians and gay men. This calumny deserves the fury that has taken hold in the gay community, and is at the very heart of the acrimony I think most of us now feel.

Everything else is beside the point. This vintage misconception (I'm really trying to restrain myself now), was publicly adopted by the administration, and we deserve nothing less than a substantive and explicit apology for it. From what I've heard and read so far, the administration has never so much as acknowledged that the brief might be reinforcing a notion that is not true - the very one that provides the foundation for the harmful notions about homosexuality gays are spending their lives trying to replace.

Like Geidner, I honestly do not think the President believes this lie. But it now has his name on it. We need to focus solely and relentlessly on getting the White House to see what it has actually told the American people.

Anybody remember the "Tax Equity For Health Plan Beneficiaries Act"? I didn't think so. It's the federal bill that would end the unfair taxation of health insurance benefits for domestic partners.

Right now, if your employer provides health insurance for your domestic partner or same-sex spouse, the insurance is taxed as income. Economist Lee Badgett estimates that this discrimination costs an average of $1069 per year and takes a collective $178 million dollars per year out of the pockets of gay and lesbian families. The Tax Equity Act would fix all of that.

The Tax Equity Act is co-sponsored by a Republican, has the backing of a huge swath of corporate America, and would provide real, concrete financial relief for same-sex couples. So when we list all of the things Obama and the Democrats in Congress aren't doing for us, why do we keep forgetting about this bill?

A hate crime bill may be psychologically satisfying, but it isn't going to do a thing to reduce hate crimes. ENDA is just going to give us another blistering fight over the political feasibility of transgender inclusion. The Democrats are so terrified of looking anti-military that they probably won't repeal Don't Ask Don't Tell until the ghost of Douglas MacArthur appears before a joint session of Congress and reveals that he was actually gay himself. So why don't we focus on something that can actually pass and would do a tremendous amount of good?

I know "tax relief" and "backed by corporate America" are dirty, dirty phrases to many on the left, but this bill really shouldn't be allowed to die on the vine.

... a passionate advocate for gay civil rights, and a brilliant and accomplished lawyer who's been in the trenches of the fight. He's also very funny and an incisive analyst, as his initial post below demonstrates.

At last he's been released from the deadening clutches of the establishment!

Barack Obama is adding a coda to Mario Cuomo's observation that people campaign in poetry but govern in prose: based on his press conference yesterday, when it comes to gay rights, even prose is failing him. On our issues, he is governing in grunts.

There is no better illustration of how badly the toxic residue of anti-gay prejudice distorts ordinary politics than Obama's flailing on the simple and fundamental issue of the inequality that federal law demands for those who are homosexual. And that is a point that cannot be overemphasized: DOMA and DADT are federal laws that explicitly require the government to discriminate based on a person's sexual orientation. Discrimination is the considered policy of the U.S. government when it comes to lesbians and gay men.

To be fair, we share part of the blame for the President's dilemma. Some of our leaders led him to believe that gestures toward equality would do. But since Obama was elected, four states have recognized full marriage equality, three of them by legislative action. On the other side of the ledger, the government has discharged one of its most articulate and talented Arabic translators, Lt. Dan Choi, because he has been honest about being gay -- at the same time that 69% of Americans say they do not support the policy under which he was fired. That is, in large part why the weak tea the President offered yesterday looked so much like weak tea.

What he did is satisfying enough, if you're among the 2% of American workers who are federal employees, and also among the 3% or so of them who are homosexual, and also among the unknown percent of them who have a committed partner. I'm not a mathematician, but I believe the overlap of these three circles in a Venn Diagram would be quite small. I know I'm immediately disqualified because I'm in the 98% of workers who isn't a federal employee.

But the scattershot benefits that are now available to that infinitesimal percentage of Americans exclude the one that makes the biggest daily difference in people's lives: health insurance. This is not just the dominant benefit in most people's employment, it comprises, by itself, between 6.9% and 8.1% of total compensation.

But the President's compelled performance was matched by those in our community who had to grit their teeth and act as if they were grateful. Rea Carey, Executive Director of the National Gay and Lesbian Task Force did everything but blink out S.O.S. with her eyelids in supporting the memo.

And, let's be honest, none of this would have happened (at least not now) but for the DNC fundraiser that continues to fall apart because the President's DOJ filed its "squalid" brief (in Dale Carpenter's perfect description) in the Smelt case - the very non-pink elephant in the room the President declined to mention.

Despite all this, it is depressing to have to acknowledge the Democrats remain better on gay issues than Republicans. But when even the Democrats are still acting with the skittishness of 1994, it's hard to distinguish the two.

At the very least, I wouldn't want to give the DNC the $1000 entrance fee to their fundraiser. At best, I think that all we've gotten from them is about $57 worth of equality.

To my skepticism below, though, I need to add a note of thanks to the administration. Someone had the good sense to invite Frank Kameny to the White House for yesterday's ceremony, and give him the President's signing pen. This explicit and public step toward equality is what Frank has been fighting administrations for since he was fired from his job as an astronmer in 1957 because he was gay.

Frank is one of the superstars of gay history, and the White House got it exactly right in making sure he was there. When they finally finish the job, they should invite him back.

(Thanks to Jon Rauch for pointing this out)

The New York Times on Tuesday called Obama out for his about-face support of the Defense of Marriage Act:

The Obama administration, which came to office promising to protect gay rights but so far has not done much, actually struck a blow for the other side last week. It submitted a disturbing brief in support of the Defense of Marriage Act, which is the law that protects the right of states to not recognize same-sex marriages and denies same-sex married couples federal benefits. The administration needs a new direction on gay rights.

Later that same day, the Washington Post reported on its website (and then in Wednesday's paper) that the administration would extend federal benefits to unmarried partners of federal workers. Will that appease LGBT Democratic liberals, who have shown themselves extremely easy to appease in the name of party unity? Stay tuned.

More. The Wall Street Journal clarifies, "The president doesn't have the power to grant gay and lesbian partners of federal workers health care and many other benefits." That's because "The government is prevented from granting many federal benefits under the Defense of Marriage Act." But, the Journal adds, "he could take other steps, such as offering family services like language training and evacuation assistance for State Department workers." Woo-hoo!

But fear not. For Pride week, Obama is signing a directive banning discrimination against LGBT federal workers (Clinton signed an executive order covering gay workers and Bush left it in place; Obama's directive includes the transgendered). Change we can believe in!

The gay community's reaction to the Obama administration's insulting and slanderous brief in the Smelt case has had some effect. A DNC fundraiser set for next week is falling apart, and the President will announce he wants to give the same federal benefits to homosexual federal employees as he gives to heterosexuals (well, some of the same federal benefits; health care seems to be off the table - the single "benefit" that comprises the lion's share of all employee benefits).

We have every right to be furious at the President, but it's important that we be furious for the right reasons.

I don't think it is fair to criticize the administration for filing the brief. The well-intentioned but hapless plaintiffs in this case have gotten themselves (and the rest of us) in over their heads. They are certain to lose their case, and it's better if they lose early on procedural grounds rather than in a published opinion that rules against us on the constitutional issues. The administration is doing nothing wrong in filing a brief to clear away this irritation.

The brief did not need to go any further than the procedural issues, and would almost certainly have prevailed on that ground. It was a mistake to have gone further. But when it did wade into the constitutional issues, it adopted arguments - as the administration's - that cannot be entertained by any reasonable person. The argument (and I quote) that "DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage," is a non sequitur. As Joe Solomonese so tartly put it, this is to say that "DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals." Spend some time with that analysis, because Solomonese nails it. The argument assumes it is possible to provide benefits only to heterosexuals in a way that does not discriminate against homosexuals. Would it also be possible to provide benefits only to men and not discriminate against women? Or to provide benefits to whites in a way that does not discriminate against people of color?

There is only one way to reconcile these incompatible ideas; adopt the right's still dominant theory that all people are really heterosexual, and could marry someone of the opposite sex if they weren't so insistent on being perverse. Everyone could get "traditionally" married, and should, so it is right to design public policy to benefit only that form of marriage. Gay people do not exist in this worldview.

This is good enough for the right, but it is not good enough for this administration - and I don't think the President believes it. But when you look at the miniscule gesture of federal benefits, you can see the real problem he faces. The reason he cannot grant health care benefits to federal employees is because DOMA is still on the books. DOMA is the single law that most fully incorporates that outdated notion of a world that has no homosexuals in it.

The President has promised - repeatedly - that he will work to repeal DOMA. But that's all he's done: promise. Similarly, he has promised to repeal DADT. All the federal benefits and hate crimes laws and even ENDAs in the world cannot balance out the harm these two laws, which actively incorporate discrimination against lesbians and gay men in federal law, do.

DADT must go, entirely. And about 70% of Americans agree. That is how perverse discrimination can be - on this single issue, the most talented politician of our era is afraid of 30% of his constituents.

The numbers are very different for DOMA, and the President is right to be cautious. But there is no need to repeal all of DOMA in order to minimize its damage. It makes political sense to keep section 2 of DOMA in place, which allows individual states to wall themselves off from progress, while repealing section 3, the part that prohibits the federal government from recognizing any equal treatment for same-sex couples.

I can think of no president in my lifetime - no politician, in fact - who is more capable of understanding what the gay community experiences, and who could, if he chose, articulate for the American people a course of action. It is his abject failure on that front so far that has made the DOJ brief such a catastrophe. I hope his speech tonight helps to clarify that we can expect something more than just gestures from him in the next few years.